Photo of Brett Gelbord

Brett Gelbord

Subscribe to Brett Gelbord's Posts

Brett Gelbord is an accomplished business attorney seated in Dykema’s Labor & Employment Group focused on providing practical and efficient guidance to employers on all manner of workforce-related issues. Brett has represented clients in a variety of industries, with a particular focus on the cannabis, automotive, and technology sectors.

Contact:Read more about Brett Gelbord

Takeaways

  • A federal court ruled that Oregon’s labor peace agreement requirement for cannabis businesses is preempted by the NLRA.
  • This decision could prompt legal challenges to similar laws in other states.

In an ironic turn of events this week, the application of federal law benefited state-licensed cannabis businesses in Oregon—and potentially nationwide. Those involved with the cannabis industry often view federal law as an impediment to cannabis businesses, given the ongoing federal illegality of cannabis and the extremely burdensome federal tax obligations created by Section 280E of the tax code. However, the National Labor Relations Act (“NLRA”) and the body of federal case law that has sprung up around it worked to nullify an Oregon ballot initiative that would have improperly restricted licensed cannabis operators from discussing the pros and cons of unionization with their workforces.Continue Reading Federal Labor Law Preempts State’s Attempt to Regulate Union Activity in Cannabis Industry

The federal Fair Labor Standards Act (“FLSA”) is the law that, among other things, requires covered employees to be paid time-and-a-half for hours worked over 40 hours in a given week. As we have repeatedly said to anyone who will listen, the fact that cannabis remains federally illegal does not mean that cannabis employers can ignore federal employment (or any other) law. The case of Waxler v All Green Transport LLC, et al., currently pending in the U.S. District Court for the Western District of Michigan with case number 23-cv-00897, is a perfect example of that.Continue Reading Michigan Secure Cannabis Transporter Does Not Get Quick Dismissal From FLSA Case

As legal markets for recreational marijuana continue to open up in the U.S., and public opinion about responsible marijuana use slides towards acceptance, the requirements for employment-related drug testing are slowly evolving to meet the moment. News articles and blog posts about changes to employment related drug testing laws typically have a standard caveat that employers with workers covered by the U.S. Department of Transportation’s regulations are likely not impacted by whatever change in the law is being discussed. This blog post, however, addresses a recent change to the DOT’s rules. Specifically, the DOT announced a new testing option that employers subject to its regulations can use in order to get a more accurate picture of workers’ recent marijuana use.Continue Reading Workplace Drug Testing Update

On March 7, 2023, a federal court in Pennsylvania issued a ruling denying a cannabis company’s motion to dismiss claims based on the federal Fair Labor Standards Act (the “FLSA”). The opinion in DeMarco et al. v. FarmaceuticalRC, LLC et al., W.D. Pa. Case No. 2022cv-1164, covers familiar ground in the realm of FLSA misclassification cases, and explains why the plaintiffs—who work as drivers ferrying defendants’ cannabis products along their supply chain—sufficiently pled their claims. Specifically, the court applied the six-factor test for determining whether a given worker is an employee or an independent contractor and found that plaintiffs had sufficiently alleged the existence of an employer-employee relationship.Continue Reading Cannabis Employee Misclassification Case Moves Forward in Federal Court